THE GUIDING HAND OF COUNSEL, FOR A PRICE: JUVENILE PUBLIC DEFENDER FEES AND THEIR EFFECTS.

• Author: Gourdie, Hannah R.

TABLE OF CONTENTS INTRODUCTION 1001 I. THE JUVENILE JUSTICE SYSTEM AND THE RIGHT TO COUNSEL 1003 A. The Development of the Juvenile Justice System 1003 B. The History and Development of the Right to Counsel for Juveniles 1004 C. Juveniles and Waiver of the Right to Counsel 1005 II. CHARGING FOR "FREE" REPRESENTATION: AN OVERVIEW OF PUBLIC DEFENDER FEE LAWS AND RELEVANT CONSTITUTIONAL PRECEDENTS 1008 III. PROBLEMS POSED BY JUVENILE PUBLIC DEFENDER FEE STATUTES 1012 A. Public Defender Fees Reinforce the Shift from Rehabilitation to Punishment in Juvenile Justice 1012 B. Juvenile Public Defender Fees Lack Procedural Due Process Protections 1015 C. Public Defender Fees Unduly Pressure Children to Waive Their Right to Counsel 1019 1. Children Receive Special Treatment in Supreme Court Jurisprudence 1019 2. Social Science on Juvenile Development and the Justice System Demonstrates Children's Immaturity 1022 3. States Have Enacted Additional Safeguards to Protect the Rights of Children 1023 4. Juveniles' Relative Immaturity Renders Them Vulnerable to Waiving the Right to Counsel in Response to Public Defender Fees 1024 5. Juveniles' Particular Characteristics Heighten the Need for Legal Protections Against Waiver 1026 a. Chilling Effects Analysis 1027 b. Mathews Analysis 1032 IV. SOLUTIONS: CURBING AND ELIMINATING THE CHILLING EFFECT 1034 A. Reducing Parental Influence on the Juvenile Right to Counsel 1034 1. Methods of Minimizing Parental Influence 1034 2. Addressing Counterarguments to These Solutions 1035 B. Ending the Practice of Imposing Juvenile Defender FEES 1037 CONCLUSION 1040 INTRODUCTION

When he was thirteen, Jonathan, a teenager from New Hampshire, was charged with simple assault after a fight with his father. (1) During his hearing in juvenile court, his father refused to pay the $275 New Hampshire public defender fee, and Jonathan--unable to afford the price of counsel--waived his right to an attorney. (2) He was placed on probation and struggled to meet his probation requirements, resulting in his arrest for probation violations.' (5) Because the court was deciding whether to detain Jonathan, Jonathan was appointed a juvenile defender. (4) The attorney brought Jonathan's unstable home life to the judge's attention, and the judge dismissed the case. (5) While Jonathan was ultimately fortunate, his story illustrates how public defender fees destabilize children's'' lives and leave them unrepresented at critical points during delinquency proceedings. (7)

In 1967, the Supreme Court extended the right to counsel to juveniles during delinquency proceedings through the Due Process Clause of the Fourteenth Amendment, holding that a "juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it." (8) Since then, every state has guaranteed juveniles the right to counsel, which juveniles can usually waive if their waiver is knowing and voluntary. (9) However, states still erect barriers to juveniles' access to public defenders and court-appointed counsel by imposing public defender fees. (10) Some public defender fees impose costs on the front end of juveniles' involvement in the juvenile court system by charging juveniles and their families a fee or a co-pay to apply for a public defender. (11) Some states, in addition to or instead of such fees, require children and their parents to reimburse the state or county for the total or partial cost of representation. (12) Twelve states and the District of Columbia do not charge juveniles or their families for the cost of a public defender. (13)

This Note seeks to examine public defender fees from a national viewpoint, situate them in the context of the juvenile justice system and its history, understand their deleterious impact on juveniles and their families, and suggest alternatives. Part I of this Note provides background on the development of the juvenile justice system and the juvenile right to counsel. Part II describes the Supreme Court precedents that are key to understanding public defender fee systems. It also discusses the different statutory schemes states use to impose and collect public defender fees in the juvenile system. Part III discusses the problems that public defender fees pose from doctrinal and practical standpoints. Finally, Part IV identifies various ways in which states could prevent public defender fees from chilling juveniles' right to counsel. These include either minimizing parental influence on children's decisions to waive counsel or eliminating public defender fees entirely.

1. THE JUVENILE JUSTICE SYSTEM AND THE RIGHT TO COUNSEL

   Understanding the development of the juvenile justice system and juveniles' right to counsel is key to appreciating the importance of counsel for juveniles and the effects of public defender fees. This Part delves into the juvenile justice system's rehabilitative purpose and how the right to counsel squares with this aim.

   1. The Development of the Juvenile Justice System

      The juvenile justice system developed during the late nineteenth and early twentieth centuries as part of the Progressive Era, beginning with the first juvenile court statute in Illinois in 1899. (14) The reformers who instigated the development of the juvenile justice system believed children were "essentially good." (15) Consequently, reformers sought to do away with the concepts of guilt and innocence within the system. (16) They instead promoted rehabilitation and treatment. (17) These developments emphasized the role of the State as the parens patriae, or a parental entity that would intervene to care for children when their parents had presumably failed to control them. (18) However, this emphasis on "social control" meant that children received fewer due process protections than adults, and judges exercised extensive and arbitrary power over the adjudication and outcome of juvenile cases. (19)

      Today, the structure and terminology of the juvenile system continue to reflect this primary focus on rehabilitation rather than punishment. For example, in McKeiver v. Pennsylvania, the Court held juveniles do not have the right to a jury trial because the use of juries in the juvenile system would impose the adversarial structure of the adult system on the juvenile system's "intimate, informal protective proceeding[s]." (20) Additionally, juvenile delinquency adjudication (21) is a civil--not a criminal--process. (22) The names of the stages in juvenile proceedings lack the punitive connotations of their counterparts in the adult system. For example, the "adjudicatory phase" refers to what would be the trial phase in the adult system and the "disposition phase" refers to sentencing. (23)

   2. The History and Development of the Right to Counsel for Juveniles

      The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." (24) By the 1960s, the Court began to reckon with the limited rights the juvenile justice system afforded to youth. During this decade, the Court incorporated the Sixth Amendment right to counsel for indigent defendants charged with felonies in state court in Gideon v. Wainwright. (25) Just four years later in In re Gault, the Court unequivocally rejected the notion of the State as parens patriae and held that juveniles were entitled to counsel. (26)

      In In re Gault, fifteen-year-old Gerard Gault had been adjudicated delinquent and sentenced to custody until age twenty-one after making lewd phone calls to a neighbor. (27) No one notified Gault's parents that he had been arrested. (28) His parents did not see the petition for Gault's arrest until a habeas hearing two months after it occurred. (29) The day after his arrest, Gault was adjudicated delinquent and sentenced to custody in an informal, unrecorded hearing, during which the judge questioned him without an attorney. (30) His parents then filed a habeas writ, which the Superior Court of Arizona dismissed. (31) The Arizona Supreme Court affirmed the dismissal of the writ. (32)

      The U.S. Supreme Court reversed this decision. (33) In In re Gault, the Court extended the right to counsel to juveniles through the Due Process Clause of the Fourteenth Amendment. (34) Specifically, the Court held that in any proceeding in which a child may be sentenced to custody in an institution, counsel should appear on behalf of the child and his parents. (35) Further, if the child's parents cannot afford to pay for an attorney, the Court instructed that courts should appoint one. (36) The Court highlighted that had Gault been an adult, he would have been "entitled to clear advice that he could be represented by counsel, and... if a felony were involved, the State would be required to provide counsel if his parents were unable to afford it." (3)' Further, the Court spelled out in detail why, under the Fourteenth Amendment, juveniles are entitled to counsel: "[J]uvenile[s] need[ ] the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and... submit it." (38) In the decades after In re Gault, every state codified juveniles' right to counsel. (39)

   3. Juveniles and Waiver of the Right to Counsel

      The In re Gault Court extended the right to counsel to juveniles but did not squarely address the issue of juvenile waiver of the right to counsel. (40) Rather, the Court held that Gault's mother did not waive her or her son's right to counsel when she appeared without counsel at the delinquency hearing despite knowing that counsel could have represented her and Gault at that hearing. (41)

      In the adult criminal justice system, the Supreme Court defines a waiver as "ordinarily an intentional relinquishment or abandonment...